What are the rights of a tenant-in-common?

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What are the rights of a tenant-in-common?

My sister, deceased brother and I inherited title of our mother’s home. We are all listed as tenants-in-common. My brother had been living in the house for some years now and after he passed away about 6 months ago his girlfriend continued to live there. When we inherited the home he just continued paying the mortgage payment. Now his girlfriend has failed to make those payments and the mortgage company has filed notice of default and started foreclosure proceedings. She will not let us in the house to secure any of our mother’s possessions or to check the condition of the house. She has told us that our brother had a Will and if any family member that wants to purchase “her” share of the house, she will talk to us. The problem is that she has yet to prove that she has a Will. We don’t want to lose the house and are willing to buy “her” share if her claims are true. She would not get anything until the house is sold of course. Do we have the right to evict her even if her claims are true?

Asked on November 23, 2010 under Real Estate Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Unless there was some formal rental agreement, a co-owner can't be evicted.  However, a sale can be ordered by a court; this is known as a "partition" by sale. This happens more commonly than you might think.  it is a judicial remedy imposed when there is disagreement among co-owners; especially if a single-family home is involved.  However, before a sale would be ordered the court will give the other co-owner(s) the right to purchase the property for fair market value.

Of course, this all assumes that this women is the legal owner of your brother's share.  If there is a Will and you take her to court she will have to produce it or otherwise prove her ownership in the porperty in some way.  If she can't then she is nothing more than a tenant and she can be evicted.  So if you sue her for eviction, she'll have to prove that she's an owner and not merely not a tenant.

Note:  If your brother had a Will, he could have left his share to whoever he so designated; if he had no Will then he died "intestate".  Accordingly, his property would be distributed pursuant to the laws of the state that he was domiciled in as of the date of his death.  If it was CA, then your bother's next of kin would take.  Typically, to children, if any; if none, then to surviving parents, if any; if none, then to brothers and sisters.


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